Update: Mulvaney has withdrawn his request to intervene.
If former Trump National Security Adviser John Bolton’s former deputy and House Democrats agree on one thing it’s that they definitely don’t want acting White House Chief of Staff Mick Mulvaney getting involved in a lawsuit over whether current and former administration officials are required to comply with demands to testify.
The lawsuit was initially filed by former White House national security official Charles Kupperman last month after the Trump administration ordered him not to comply with a subpoena from House Democrats. Kupperman wanted a judge to decide whether he should or should not comply, but House Democrats withdrew the subpoena last Wednesday:
They asked a federal judge to dismiss the case, saying they would instead look for guidance in the outcome of similar litigation involving a subpoena to former White House counsel Donald McGahn.
That Don McGahn case is also worth watching; the DOJ’s arguments in court did not appear to go well.
Last Friday, Mulvaney sought to intervene in the Kupperman case. On Monday, an attorney for Kupperman and lawyers for House Democrats both rejected Mulvaney’s motion to intervene, but in different ways.
The Court should exercise its discretion to deny permissive intervention because Mulvaney’s action threatens to “unduly delay or prejudice the adjudication of” Plaintiff’s suit. From the outset, the Court recognized that this case “is a matter of great public interest and a matter of great urgency to the country,” and for that reason the Court emphasized that its “overarching concern is that we get all this done as soon as possible so we can move forward with a briefing schedule and bring this case to resolution.” Transcript of Status Conference at 6 (Oct. 31, 2019). To achieve this objective, the Court has adopted an aggressive briefing schedule to enable the Court to resolve this case “by the end of December or early January.” Id. at 18. Permitting Mulvaney to intervene threatens to frustrate the Court’s efforts and to prejudice Plaintiff’s strong interest in prompt resolution of the constitutional dilemma in which he finds himself.
For the foregoing reasons, the Court should deny Mulvaney’s motion to intervene and instead designate his complaint as a “related case” under Local Civil Rule 40.5(a)(3)
Mulvaney should not be permitted to intervene. It would be an abuse of discretion to permit intervention in a moot case. See Koon v. United States, 518 U.S. 81, 100 (1996) (an error of law is an abuse of discretion). Moreover, for the reasons set forth above, Mulvaney’s claim does not “share with [Kupperman’s] action a common question of law or fact.” Fed. R. Civ. P. 24(b). Among other differences, Mulvaney is subject to a pending subpoena while Kupperman is not; Mulvaney is a current White House employee while Kupperman is not; and Mulvaney asserts different claims for relief against parties that are not named as defendants in Kupperman’s complaint. See, e.g.,Colo. River Cutthroat Trout, 2010 WL 11575619, at *2 (denying permissive intervention where the court’s “review [would] not address [the] issue” of concern to the proposed intervenor, such that the Court’s decision would not leave the proposed intervenor “without a remedy to protect its interest”). As Mulvaney concedes, his claim differs from Kupperman’s.See Mot. at 6. Indeed, given Mulvaney’s position in the White House, he likely played a role in the very decision to assert absolute immunity that he now asks this Court to address. It would be particularly inappropriate to allow Mulvaney permissive intervention to challenge a decision that he likely played a role in making.
What mootness means: “Because Federal Courts only have constitutional authority to resolve actual disputes (see Case or Controversy) legal actions cannot be brought or continued after the matter at issue has been resolved, leaving no live dispute for a court to resolve. In such a case, the matter is said to be ‘moot.'”
You can read both filings below.
Jerry Lambe contributed to this report.
[Image via Win McNamee/Getty Images]
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